Punjab-Haryana High Court
Asraf Ali vs Mohd. Ammar And Ors on 22 August, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
RSA No. 1907 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1907 of 2014 (O&M)
Date of Decision 22.8.2014
Asraf Ali
....Appellant
Versus
Mohd. Ammar and others
....Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Rajesh Arora, Advocate
for the appellant.
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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RAMESHWAR SINGH MALIK J. (Oral)
Having been non suited by both the learned courts below, recording concurrent findings of facts, whereby suit for declaration and injunction was dismissed, plaintiff has approached this Court by way of instant regular second appeal.
Briefly put, facts of the case, as noticed by learned Additional District Judge in para 2 and 3 of the impugned judgment, are that Shri Jorawar, the predecessor-in-interest of the parties to the proceedings had four sons namely Abdul Rehman, Ibrahim, Abdul Rahim @ Dhandu and Fazru. Abdul Rahim @ DhanduAMIT expired KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 2 issueless and his 1/4th share in the property of Jorawar was inherited by his three brothers. Fazruddin expired on 22.12.2005. He was survived by his two daughters who were married. At the time of his death, he was owner in possession of 1/3rd share in the land measuring 18 kanals 6 marlas comprised in Khewat No.658,Khatoni No.870, rect, No.76, Killa No.14, 15/1, 15/2, 16 rect. No.123, Killa No.25/1, rect. No.124, Killa No.1/1, 1/2, 10, 11, rect. No.125, Killa No.4,5,16/1,6,7,15. Khasra No.943, Khatoni No.871, rect. No.76 Killa No.16/2, 7, 17, Khatoni No.872, rect. No.125, Killa No.8/2, situated within the revenue estate of village Kot, Tehsil Hathin, Distt, Mewat, Nuh (hereinafter referred to as 'suit property'). The parties to the suit, were governed by Muslim Law. As per the custom prevalent in the community, the plaintiff inherited the suit property to the extent of 1/2 share, being son of Abdul Rehman and brother of Fazruddin, and the defendants inherited another 1/2 share being the sons of Ibrahim, another brother of Fazruddin. They also inherited the residential properties and other movable properties of deceased Fazruddin in the same land, however, defendant No.1-Mohd. Ammar claimed himself to be the owner of the suit property on the basis of Will dated 25.11.2005. He threatened to get mutation sanctioned and wanted to alienate the land in dispute illegally on the basis of the impugned Will. Late Fazruddin never executed any Will on 25.01.2005. Moreover, he had no intention to deprive the plaintiff of his right to inherit his property after his death. Plaintiff used to look after Fazruddin during his last time and he was pleased with his services. The impugned Will was not binding on the rights of the plaintiff. As AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 3 the suit property was ancestral in the hands of the Fazruddin, he had no right to execute the Will in respect of the ancestral property. The parties to the proceedings and Fazruddin were Meos by caste and were governed by agricultural custom in the matters of alienation and succession. As per custom, no man can bequeath the ancestral property or alienate the same for legal necessity etc. Hence, the Will in question was liable to be ignored. The impugned Will was never signed or thumb marked by Fazruddin and the Will was a forged document which had been prepared in collusion with attesting witnesses namely Jomu Lamberdar, Sarif Khanand Sh. Sarwan Kumar Advocate, who were involved in many cases of forgery and cheating. Smt. Haleema and Smt. Maksoodan Daughter of Fazruddin were entertained socially by the plaintiff and as such, Fazruddin was happy with the services of plaintiff. Defendant No.1 also prepared a bogus adoption deed dated 22.10.1990. In case, the impugned adoption deed was executed by late Fazruddin, there was no necessity to fabricate the impugned Will dated 25.11.2005. Moreover, in the impugned Will, defendant No.1 claimed himself to be the son of Ibrahim. This clearly means that impugned adoption deed was, in fact, neither acted upon nor accepted as correct. It was fabricated to create a false evidence to claim the property of deceased-Fazruddin. The impugned adoption deed was stated to have been witnessed by Rojdar and Abdul Rajjak, and typed by Rafeek Ahmed, Deed Writer who were involved in several cases of cheating and forgery. Defendant No.3 threatened to sanction the mutation on the basis of disputed Will dated 25.11.2005 without hearing the objections of the AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 4 plaintiff. Hence, cause of action arose to the plaintiff and he was constrained to file the instant suit seeking declaration to the effect that he was the owner in possession of 1/2 share in the suit property and the impugned Will dated 25.11.2005 as well as adoption deed dated 22.10.1990 were illegal, null and void. He also sought a decree for permanent injunction restraining the defendants from alienating the suit property and sanctioning the mutation in favour of defendant No.1.
In written statement, besides taking preliminary objections on non-maintainability, locus standi, cause of action and estoppel etc., the suit was resisted by defendant No.1 on the ground that he was adopted by late Fazruddin who was the son of the brother of deceased Fazruddin and his wife's sister. The impugned Will was legally valid, perfect and was executed by Fazruddin who used to live with defendant No.1 and his family members who used to serve him and his wife Mst. Ashi. Out of love and affection and as the deceased had no male issue, he adopted defendant No.1 and executed Fazruddin. He appointed him as his legal heir by executing a Will dated 25.11.2005. It was denied that parties were Meos by caste and they governed by the custom in the matters of alienation and succession. It was also denied that as per custom, no person can execute a Will in favour of his legal heir. The impugned adoption deed was also legally valid one and the instant suit has been filed just to harass him. The rest of the averments of the plaint have been denied specifically and a prayer for dismissal of the suit has been made. AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 5 On completion of pleadings of the parties, learned trial court framed the following issues:-
1. Whether the plaintiff is owner in joint possession to the extent of half share in the 1/ 3rd share of deceased Fazruddin qua suit property? OPP
2. Whether impugned Will dated 25.11.2005 is liable to be set aside? OPP
3. Whether the present suit is not maintainable?
OPD
4. Whether the present suit is bad for non-joinder and mis-joinder of necessary parties? OPD
5. Relief.
With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to conclusion that plaintiff has failed to prove his case. Accordingly, suit was dismissed vide impugned judgment and decree dated 8.1.2011. Feeling aggrieved, plaintiff filed his first appeal, which also came to be dismissed by the learned Additional District Judge, vide impugned first appellate court, vide impugned 7.11.2013. Hence this second appeal, at the hands of the plaintiff.
Learned counsel for the appellant submits that defendants have taken contradictory stands. Once Fazruddin had already adopted defendant No.1 namely Mohd. Ammar son of Ibrahim by way of adoption deed dated 22.10.1990 Ex.P2, there was no scope for AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 6 Fazruddin to treat and recognise Mohd. Ammar as his nephew at the time of execution of the Will Ex.D1 dated 25.11.2005 in favour of the defendant No.1. He further submits that this was the suspicious circumstance. He would next contend that Fazruddin died on 22.12.2005 whereas Will was dated 25.11.2005 and he was not keeping good health at the time of execution of the Will. Since both the courts below failed to appreciate these material aspects of the matter, impugned judgments and decrees were not sustainable in law. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.
Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted for at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. To say so, reasons are more than one, which are being recorded hereinafter.
Relationship between the parties is not in dispute. The Will Ex.D1 was a registered document. It is also not in dispute that defendant No.1-Mohd.Ammar was nephew of Fazruddin son of Jorawar. Learned counsel for the appellant was right in contending that Fazruddin would not address defendant No.1 as nephew, rather, he ought to have addressed him as his adopted son at the time of execution of the Will. However, this fact alone has not rightly been found sufficient by both the learned courts below, to be a suspicious AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 7 circumstance. Similarly, onus was on the plaintiff-appellant to prove his case by leading cogent and convincing evidence. However, plaintiff-appellant failed to discharge his onus in this regard. Plaintiff had the opportunity to get the thumb impressions of the testator- Fazruddin compared with his admitted thumb impressions, by any finger print expert, but he failed to do this also. Since the Will was a registered document, therefore, presumption of it being genuine document would be in favour of beneficiary thereof. Having said that, this Court feels no hesitation to conclude that learned courts below committed no error of law, while passing their respective impugned judgments and the same deserve to be upheld.
Further, execution of the Will has been duly proved by the defendants by producing scribe as well as attesting witnesses. The witnesses were put to cross examination. Plaintiff had every opportunity to cross-examine the witnesses of the defendants on each and every aspect of the matter. However, the witnesses as well as scribe of the Will, stood the acid test of cross examination and the plaintiff could not extract anything objectionable or suspicious from them, so as to prove that Will Ex.D1 was surrounded by suspicious circumstances. In such a situation, it can be safely concluded that Will was a genuine document and the impugned judgments deserve to be upheld, for this reason also.
Before arriving at a judicious conclusion, learned Additional District Judge, re-appreciated the true facts of the case as well as evidence brought on record, while recording cogent findings in para 10 to 18 of the impugned judgment. Relevant findings recorded AMIT KUMAR in 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 8 para 12 and 13, read as under:-
"Considering the arguments advanced by the learned counsel for the parties and after going through the record available on the file, this court is of the view that lower Court has rightly given findings on issue No.1,2 and I-A in favour of defendant-respondent, because the adoption deed dated 22.10.1990 has been duly proved at the instance of respondent-defendant and even the persons who were very much present at the time of execution of adoption deed, have been examined and nothing adverse could be chewed from the statements at the instance of learned counsel for the plaintiff/appellant. The only witness, who was examined by the plaintiff was PW-1 and no other witness could be examined to disprove the execution of alleged documents i.e. adoption deed and Will in question. The plaintiff-appellant has specifically admitted that it is the respondent- defendant, who was looking after Fazruddin during his last time. Learned counsel for plaintiff has put his tress on this fact that respondent-defendant Mohd. Ammar has admitted that before the death of Fazruddin about 2-3 months he remained ill, but no instance could be put forward at the instance of plaintiff that how he was unfit for execution of any AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 9 Will in favour of his adopted son Mohd. Ammar. The factum of Will executed by deceased Fazruddin has been duly proved and established at the instance of defendant, at the same time, the adoption deed dated 22.12.1990 has also been proved to be genuine one, because no cogent and convincing evidence could be led at the instance of plaintiff, rather plaintiff-appellant has tried to take benefit of weakness of the case of the defendant, but is settled proposition of law that the plaintiff has to stand on his own legs and he cannot take the benefit of the weakness of the defendant. The scribe and attesting witness have duly established the execution of Will and it has been specifically deposed by DW-4 Rozdar, Lamberdar, who is attesting witness of the document by saying that at the time of execution of document he was very much present and he appended his thumb impression over the document and both the parties were known personally to him. Rather Lamberdar of the village has also proved this fact that Mohd. Ammar being adopted son haki looked after Fazruddin at the fag end of his life and this evidence of the !witness is admissible under Section 59 of the India Evidence Act. The document was executed and duly registered and it was evidentiary value in AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 10 the eyes of law. Learned lower court has relied upon Sant Ram Versus Brij Mohan Kaura & Anr. 2006 (2) WR 291 that a registered document received and proved in evidence cannot be simply ignored on the conjectures and surmises of the Court. It shall be preserved to be genuine unless in unimpeachable evidence is produced to the contrary. In absence of any evidence led by the plaintiff-appellant against these documents, all the contentions raised by the learned counsel for the plaintiff-appellant are gone and it has been established on the file the deceased Fazruddin had adopted Mohd. Ammar during his life time and adoption deed dated 22.12.1990 was executed, which is perfect, legal and genuine document.
The other fact comes whether any will was executed by deceased Fazruddin or not. But it is settled proposition of law that burden of proof of execution of Will is on the prepounder of the Will, whereas other party was duty bound to show suspicious circumstances of the Will. The defendant-respondent has fully proved his case by leading cogent and convincing evidence and examining all the necessary and material witnesses in whose presence the document was prepared and all the witnesses DW-1 to DW-7 have corroborated AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 11 the version of the respondent-defendant. Not even a single instance could be shown by the plaintiff- appellant that how the will was surrounded by suspicious circumstances. The Will is a registered documents and presumption of truth/genuineness is attached to it in the absence of any cogent evidence to be adduced at the instance of plaintiff-appellant. Nothing is on the record to show and prove that Fazruddin was mentally unsound, rather the circumstances shown by PW-7 Aasini being attesting witness has proved that Will has duly executed out of his free and proper state of affairs of deceased Fazruddin in her presence. One fact has been admitted by the plaintiff that Fazruddin has deep love and affection and that love and affection was due to double relationship with his brother, because the mother of Mohd. Ammar was sister of wife of Fazruddin. So, this love and affection is also established out of which the Will was executed by deceased Fazruddin."
During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the both the learned courts below. Further, no AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document RSA No. 1907 of 2014 (O&M) 12 question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC, as held by the Hon'ble Supreme Court in Naryanan Rajendran and another Vs. Lekshmy Sarojini and others, 2009 (2) RCR (civil) 286. Thus, the impugned judgments deserve to be uphled, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.
Resultantly, the instant second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 22.8.2014 AK Sharma AMIT KUMAR 2014.09.01 10:12 I attest to the accuracy and integrity of this document